U.S. v. Jeremiah West

• Decision Date: 17 May 2011
• Docket Number: No. 10–4123.,10–4123.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Jeremiah WEST, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

646 F.3d 745

UNITED STATES of America, Plaintiff–Appellee,

v.Jeremiah WEST, Defendant–Appellant.

No. 10–4123.

United States Court of Appeals, Tenth Circuit.

May 17, 2011.

Submitted on the briefs: ^*Carlie Christensen, United States Attorney, and Karin M. Fojtik, Assistant United States Attorney, Salt Lake City, UT, for Plaintiff–Appellee.Steven B. Killpack, Utah Federal Defender, Scott Keith Wilson, Assistant Federal Defender, and Kent Hart of Utah Federal Defender's Office, Salt Lake City, UT, for Defendant–Appellant.Before KELLY, TACHA, and EBEL, Circuit Judges.KELLY, Circuit Judge.

Defendant–Appellant Jeremiah West appeals from a remand sentence. In United States v. West (West I), 550 F.3d 952 (10th Cir.2008), we affirmed the district court's determination that he was subject to a minimum mandatory 15–year sentence, but remanded for the district court to make factual findings regarding the facts underlying three enhancements. On appeal, Mr. West challenges whether a prior felony conviction for failure to stop constitutes a violent felony under the Armed Career Criminal Act (“ACCA”) and the restitution award. Our jurisdiction arises under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and we affirm in part and remand.

Background

Briefly, Mr. West was indicted on four counts: (1) being a previously convicted felon in possession of a firearm and ammunition, (2) being a person who is addicted to and an unlawful user of controlled substances who knowingly possesses a firearm and ammunition, (3) possessing marijuana with the intent to distribute, and (4) possessing methamphetamine. West I, 550 F.3d at 955. Mr. West pleaded guilty to one count of being a previously convicted felon in possession of a firearm in exchange for the Government's agreement to drop the other charges. Id. In pleading guilty, he admitted that he had tried to evade police, that he knowingly possessed the shotgun found in his car, and that he had previously been convicted of a felony. Id. at 956. He was sentenced to 235 months' imprisonment, at the low end of the Sentencing Guidelines range of 235 to 293 months. 1 R. 82–83. The district court also ordered Mr. West to pay $6,118.26 in restitution for damage during the attempt to flee. Id. at 86.

On appeal from his sentence, we concluded that the district court failed to address specifically Mr. West's objections to the PSR's facts, instead simply adopting the PSR. West I, 550 F.3d at 974. We remanded with instructions to resolve the factual disputes Mr. West raised or, if determined that the government did not prove the disputed facts by a preponderance of the evidence, that the court conduct a new sentencing proceeding excluding those unproven factual allegations. Id. at 975.

On remand, Mr. West argued that his sentence should not have been enhanced under the ACCA; the gun he possessed was not stolen; and his childhood abuse, trauma, and psychological disorders mitigated his conduct. 1 R. 92–94. In addition, Mr. West argued for the first time that the district court improperly imposed restitution for damage that did not result from the actions forming the underlying basis for his conviction. Id. at 148.

At resentencing, the government agreed that no evidence supported a two-level enhancement for possessing a stolen weapon, reducing the guideline range to 188–235 months. Id. at 157. The district court resentenced Mr. West on July 1, 2010, removing the stolen weapon enhancement and sentencing Mr. West under the § 3553 factors. 2 R. 15–16. The court imposed the statutory minimum sentence of 180 months. Id. at 16. However, the court concluded that it lacked the power to revisit the restitution issue as it was not the issue prompting the remand, regardless of whether it was properly raised by Mr. West. Id.

On appeal, Mr. West again asserts that his fleeing conviction is outside the ambit of the ACCA. Aplt. Br. 3. He also argues that the restitution award in this case was illegal. Id. at 4.

Discussion

In reviewing a sentence on appeal, we first determine whether the sentence is procedurally reasonable, reviewing the district court's legal conclusions de novo and its factual findings for clear error. United States v. Muñoz–Nava, 524 F.3d 1137, 1146 (10th Cir.2008). Whether Mr. West's prior conviction for failure to stop constitutes a violent felony under the ACCA is a legal determination that we review de novo. Likewise, the district court's determination that it lacked the authority to hear the restitution argument on resentencing is a purely legal issue that we review de novo. As the issue of the district court's authority concerns compliance with the mandate issued by this court, we review for harmless error. United States v. Lang, 405 F.3d 1060, 1064 (10th Cir.2005).

A. Violent Felony Under the ACCA and Law of the Case

“ ‘[W]hen a case is appealed and remanded, the decision of the appellate court establishes the law of the case and ordinarily will be followed by both the trial court on remand and the appellate court in any subsequent appeal.’ ” Roth v. Green, 466 F.3d 1179, 1187 (10th Cir.2006) (quoting Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1183 (10th Cir.1995)). Under this doctrine, we are bound by our determination in West I that Mr. West's prior felony conviction for failure to stop constitutes a violent felony under the ACCA. The law of the case doctrine precludes relitigation of a ruling of law in a case once it has been decided. McIlravy v. Kerr–McGee Coal Corp., 204 F.3d 1031, 1034–35 (10th Cir.2000). The doctrine “ ‘posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.’ ” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 816, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983)).

The law of the case doctrine is a rule of practice, Pittsburg Cnty. Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 711 (10th Cir.2004), and, therefore, may be excused by circumstances such as intervening contrary decisions by the Supreme Court, United States v. Platero, 72 F.3d 806, 811 (10th Cir.1995). In West I, we addressed Mr. West's argument under the ACCA and determined that his prior conviction for failure to stop constitutes a violent felony under the ACCA. 550 F.3d at 960. That determination is the law of the case unless the Supreme Court issues an intervening contrary decision. Mr. West now argues that a case recently argued before the Supreme Court, United States v. Sykes, 598 F.3d 334 (7th Cir.2010), cert. granted, ––– U.S. ––––, 131 S.Ct. 63, 177 L.Ed.2d 1152 (2010) (No. 09–11311), may provide such authority.

We recognize that Sykes presents the Supreme Court with the question this court answered in West I. However, as a disposition in Sykes has not yet been reached, the law of the case for this appeal remains unchanged. If the Supreme Court issues an opinion in Sykes favorable to Mr. West, it will probably be within the ninety-day window in which West can file a petition for certiorari to the Supreme Court. Sup.Ct. R. 13. Or, alternatively, Mr. West can seek a precautionary petition for certiorari arguing the Sykes issue. But for now, we must affirm our prior ruling that West's prior felony conviction for failure to stop constitutes a violent felony under the ACCA.

B. Restitution upon Resentencing and the Mandate Rule

Mr. West did not raise his challenge to the restitution award in his initial sentencing proceedings and appeal, and, therefore, we are not bound by the law of the case with respect to this issue. Because we remanded for resentencing, the mandate rule controls here. The mandate rule is a corollary to the law of the case requiring trial court conformity with the appellate court's terms of remand; in this circuit “where the appellate court has not specifically limited the scope of the remand, the district court generally has discretion to expand the resentencing beyond the sentencing error causing the reversal.” United States v. Moore, 83 F.3d 1231, 1234 (10th Cir.1996) (citations omitted). The mandate rule is consistent with 18 U.S.C. § 3742(g), which directs that when a case is remanded for resentencing, the district court “shall resentence a defendant in accordance with section 3553 and with such instructions as may have been given by the court of appeals....” See generally Fed. R.App. P. 41(a).

The mandate rule is “a rule of policy and practice, not a jurisdictional limitation, which thus allows some flexibility in exceptional circumstances.” Moore, 83 F.3d at 1234–35. The Government asserts that because the requisite exceptional circumstances are not present in the case, a second remand is not warranted. Aplee. Br. at 13 n. 3. (citing Moore, 83 F.3d at 1234). This argument is beside the point; because we conclude that consideration of Mr. West's challenge to the restitution award was within the permissible scope of remand, we need not address whether exceptional circumstances are present such that an exception to the mandate rule would be warranted.

There is a divergence among the circuits concerning the permissible scope of resentencing on remand. See United States v. Whren, 111 F.3d 956, 959 (D.C.Cir.1997) (collecting cases); Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, Federal Practice & Procedure § 4478.3, at 763 n. 64 (2d ed.2002). While this circuit and others generally contemplate that resentencing may proceed de novo, others employ a “waiver” approach reasoning that issues not previously raised have been waived. Whren, 111 F.3d at 959. Our rule is perhaps best illustrated by contrast to those circuits that have adopted the waiver approach. For example, the Seventh Circuit and the District of Columbia Circuit have adopted the rule that “[o]nly an issue arising out of the correction of the sentence ordered by [the court of appeals] could be raised in a...